SECTIONS 2350-2360 - California Statutes

PROBATE CODE

SECTION 2350-2360

2350. As used in this chapter:
(a) "Conservator" means the conservator of the person.
(b) "Guardian" means the guardian of the person.
(c) "Residence" does not include a regional center established
pursuant to Chapter 5 (commencing with Section 4620) of Division 4.5
of the Welfare and Institutions Code.

2351. (a) Subject to subdivision (b), the guardian or conservator,
but not a limited conservator, has the care, custody, and control of,
and has charge of the education of, the ward or conservatee.
(b) Where the court determines that it is appropriate in the
circumstances of the particular conservatee, the court, in its
discretion, may limit the powers and duties that the conservator
would otherwise have under subdivision (a) by an order stating either
of the following:
(1) The specific powers that the conservator does not have with
respect to the conservatee's person and reserving the powers so
specified to the conservatee.
(2) The specific powers and duties the conservator has with
respect to the conservatee's person and reserving to the conservatee
all other rights with respect to the conservatee's person that the
conservator otherwise would have under subdivision (a).
(c) An order under this section (1) may be included in the order
appointing a conservator of the person or (2) may be made, modified,
or revoked upon a petition subsequently filed, notice of the hearing
on the petition having been given for the period and in the manner
provided in Chapter 3 (commencing with Section 1460) of Part 1.
(d) The guardian or conservator, in exercising his or her powers,
may not hire or refer any business to an entity in which he or she
has a financial interest except upon authorization of the court.
Prior to authorization from the court, the guardian or conservator
shall disclose to the court in writing his or her financial interest
in the entity. For the purposes of this subdivision, "financial
interest" shall mean (1) an ownership interest in a sole
proprietorship, a partnership, or a closely held corporation, or (2)
an ownership interest of greater than 1 percent of the outstanding
shares in a publicly traded corporation, or (3) being an officer or a
director of a corporation. This subdivision shall apply only to
conservators and guardians required to register with the Statewide
Registry under Chapter 13 (commencing with Section 2850).

2351.5. (a) Subject to subdivision (b):
(1) The limited conservator has the care, custody, and control of
the limited conservatee.
(2) The limited conservator shall secure for the limited
conservatee those habilitation or treatment, training, education,
medical and psychological services, and social and vocational
opportunity as appropriate and as will assist the limited conservatee
in the development of maximum self-reliance and independence.
(b) A limited conservator does not have any of the following
powers or controls over the limited conservatee unless those powers
or controls are specifically requested in the petition for
appointment of a limited conservator and granted by the court in its
order appointing the limited conservator:
(1) To fix the residence or specific dwelling of the limited
conservatee.
(2) Access to the confidential records and papers of the limited
conservatee.
(3) To consent or withhold consent to the marriage of, or the
entrance into a registered domestic partnership by, the limited
conservatee.
(4) The right of the limited conservatee to contract.
(5) The power of the limited conservatee to give or withhold
medical consent.
(6) The limited conservatee's right to control his or her own
social and sexual contacts and relationships.
(7) Decisions concerning the education of the limited conservatee.
(c) Any limited conservator, the limited conservatee, or any
relative or friend of the limited conservatee may apply by petition
to the superior court of the county in which the proceedings are
pending to have the limited conservatorship modified by the
elimination or addition of any of the powers which must be
specifically granted to the limited conservator pursuant to
subdivision (b). The petition shall state the facts alleged to
establish that the limited conservatorship should be modified. The
granting or elimination of those powers is discretionary with the
court. Notice of the hearing on the petition shall be given for the
period and in the manner provided in Chapter 3 (commencing with
Section 1460) of Part 1.
(d) The limited conservator or any relative or friend of the
limited conservatee may appear and oppose the petition. The court
shall hear and determine the matter according to the laws and
procedures relating to the trial of civil actions, including trial by
jury if demanded. If any of the powers which must be specifically
granted to the limited conservator pursuant to subdivision (b) are
granted or eliminated, new letters of limited conservatorship shall
be issued reflecting the change in the limited conservator's powers.

2352. (a) The guardian may establish the residence of the ward at
any place within this state without the permission of the court. The
guardian shall select the least restrictive appropriate residence
that is available and necessary to meet the needs of the ward, and
that is in the best interests of the ward.
(b) The conservator may establish the residence of the conservatee
at any place within this state without the permission of the court.
The conservator shall select the least restrictive appropriate
residence, as described in Section 2352.5, that is available and
necessary to meet the needs of the conservatee, and that is in the
best interests of the conservatee.
(c) If permission of the court is first obtained, a guardian or
conservator may establish the residence of a ward or conservatee at a
place not within this state. Notice of the hearing on the petition
to establish the residence of the ward or conservatee out of state,
together with a copy of the petition, shall be given in the manner
required by subdivision (a) of Section 1460 to all persons entitled
to notice under subdivision (b) of Section 1511 or subdivision (b) of
Section 1822.
(d) An order under subdivision (c) shall require the guardian or
conservator either to return the ward or conservatee to this state,
or to cause a guardianship or conservatorship proceeding or its
equivalent to be commenced in the place of the new residence, when
the ward or conservatee has resided in the place of new residence for
a period of four months or a longer or shorter period specified in
the order.
(e) (1) The guardian or conservator shall file a notice of change
of residence with the court within 30 days of the date of the change.
The guardian or conservator shall include in the notice of change of
residence a declaration stating that the ward's or conservatee's
change of residence is consistent with the standard described in
subdivision (b).
(2) The guardian or conservator shall mail a copy of the notice to
all persons entitled to notice under subdivision (b) of Section 1511
or subdivision (b) of Section 1822 and shall file proof of service
of the notice with the court. The court may, for good cause, waive
the mailing requirement pursuant to this paragraph in order to
prevent harm to the conservatee or ward.
(3) If the guardian or conservator proposes to remove the ward or
conservatee from his or her personal residence, except as provided by
subdivision (c), the guardian or conservator shall mail a notice of
his or her intention to change the residence of the ward or
conservatee to all persons entitled to notice under subdivision (b)
of Section 1511 and subdivision (b) of Section 1822. In the absence
of an emergency, that notice shall be mailed at least 15 days before
the proposed removal of the ward or conservatee from his or her
personal residence. If the notice is served less than 15 days prior
to the proposed removal of the ward or conservatee, the guardian or
conservatee shall set forth the basis for the emergency in the
notice. The guardian or conservator shall file proof of service of
that notice with the court.
(f) This section does not apply where the court has made an order
under Section 2351 pursuant to which the conservatee retains the
right to establish his or her own residence.
(g) As used in this section, "guardian" or "conservator" includes
a proposed guardian or proposed conservator and "ward" or
"conservatee" includes a proposed ward or proposed conservatee.
(h) This section does not apply to a person with developmental
disabilities for whom the Director of the Department of Developmental
Services or a regional center, established pursuant to Chapter 5
(commencing with Section 4620) of Division 4.5 of the Welfare and
Institutions Code, acts as the conservator.

2352.5. (a) It shall be presumed that the personal residence of the
conservatee at the time of commencement of the proceeding is the
least restrictive appropriate residence for the conservatee. In any
hearing to determine if removal of the conservatee from his or her
personal residence is appropriate, that presumption may be overcome
by a preponderance of the evidence.
(b) Upon appointment, the conservator shall determine the
appropriate level of care for the conservatee.
(1) That determination shall include an evaluation of the level of
care existing at the time of commencement of the proceeding and the
measures that would be necessary to keep the conservatee in his or
her personal residence.
(2) If the conservatee is living at a location other than his or
her personal residence at the commencement of the proceeding, that
determination shall either include a plan to return the conservatee
to his or her personal residence or an explanation of the limitations
or restrictions on a return of the conservatee to his or her
personal residence in the foreseeable future.
(c) The determination made by the conservator pursuant to
subdivision (b) shall be in writing, signed under penalty of perjury,
and submitted to the court within 60 days of appointment as
conservator.
(d) The conservator shall evaluate the conservatee's placement and
level of care if there is a material change in circumstances
affecting the conservatee's needs for placement and care.
(e) (1) This section shall not apply to a conservatee with
developmental disabilities for whom the Director of Developmental
Services or a regional center for the developmentally disabled,
established pursuant to Chapter 5 (commencing with Section 4620) of
Division 4.5 of the Welfare and Institutions Code, acts as the
conservator and who receives services from a regional center pursuant
to the Lanterman Developmental Disabilities Act (Division 4.5
(commencing with Section 4500) of the Welfare and Institutions Code).
(2) Services, including residential placement, for a conservatee
described in paragraph (1) who is a consumer, as defined in Section
4512 of the Welfare and Institutions Code, shall be identified,
delivered, and evaluated consistent with the individual program plan
process described in Article 2 (commencing with Section 4640) of
Chapter 5 of Division 4.5 of the Welfare and Institutions Code.

2353. (a) Subject to subdivision (b), the guardian has the same
right as a parent having legal custody of a child to give consent to
medical treatment performed upon the ward and to require the ward to
receive medical treatment.
(b) Except as provided in subdivision (c), if the ward is 14 years
of age or older, no surgery may be performed upon the ward without
either (1) the consent of both the ward and the guardian or (2) a
court order obtained pursuant to Section 2357 specifically
authorizing such treatment.
(c) The guardian may consent to surgery to be performed upon the
ward, and may require the ward to receive the surgery, in any case
where the guardian determines in good faith based upon medical advice
that the case is an emergency case in which the ward faces loss of
life or serious bodily injury if the surgery is not performed. In
such a case, the consent of the guardian alone is sufficient and no
person is liable because the surgery is performed upon the ward
without the ward's consent.
(d) Nothing in this section requires the consent of the guardian
for medical or surgical treatment for the ward in any case where the
ward alone may consent to such treatment under other provisions of
law.

2354. (a) If the conservatee has not been adjudicated to lack the
capacity to give informed consent for medical treatment, the
conservatee may consent to his or her medical treatment. The
conservator may also give consent to the medical treatment, but the
consent of the conservator is not required if the conservatee has the
capacity to give informed consent to the medical treatment, and the
consent of the conservator alone is not sufficient under this
subdivision if the conservatee objects to the medical treatment.
(b) The conservator may require the conservatee to receive medical
treatment, whether or not the conservatee consents to the treatment,
if a court order specifically authorizing the medical treatment has
been obtained pursuant to Section 2357.
(c) The conservator may consent to medical treatment to be
performed upon the conservatee, and may require the conservatee to
receive the medical treatment, in any case where the conservator
determines in good faith based upon medical advice that the case is
an emergency case in which the medical treatment is required because
(1) the treatment is required for the alleviation of severe pain or
(2) the conservatee has a medical condition which, if not immediately
diagnosed and treated, will lead to serious disability or death. In
such a case, the consent of the conservator alone is sufficient and
no person is liable because the medical treatment is performed upon
the conservatee without the conservatee's consent.

2355. (a) If the conservatee has been adjudicated to lack the
capacity to make health care decisions, the conservator has the
exclusive authority to make health care decisions for the conservatee
that the conservator in good faith based on medical advice
determines to be necessary. The conservator shall make health care
decisions for the conservatee in accordance with the conservatee's
individual health care instructions, if any, and other wishes to the
extent known to the conservator. Otherwise, the conservator shall
make the decision in accordance with the conservator's determination
of the conservatee's best interest. In determining the conservatee's
best interest, the conservator shall consider the conservatee's
personal values to the extent known to the conservator. The
conservator may require the conservatee to receive the health care,
whether or not the conservatee objects. In this case, the health care
decision of the conservator alone is sufficient and no person is
liable because the health care is administered to the conservatee
without the conservatee's consent. For the purposes of this
subdivision, "health care" and "health care decision" have the
meanings provided in Sections 4615 and 4617, respectively.
(b) If prior to the establishment of the conservatorship the
conservatee was an adherent of a religion whose tenets and practices
call for reliance on prayer alone for healing, the treatment required
by the conservator under the provisions of this section shall be by
an accredited practitioner of that religion.

2356. (a) No ward or conservatee may be placed in a mental health
treatment facility under this division against the will of the ward
or conservatee. Involuntary civil placement of a ward or conservatee
in a mental health treatment facility may be obtained only pursuant
to Chapter 2 (commencing with Section 5150) or Chapter 3 (commencing
with Section 5350) of Part 1 of Division 5 of the Welfare and
Institutions Code. Nothing in this subdivision precludes the placing
of a ward in a state hospital under Section 6000 of the Welfare and
Institutions Code upon application of the guardian as provided in
that section. The Director of Mental Health shall adopt and issue
regulations defining "mental health treatment facility" for the
purposes of this subdivision.
(b) No experimental drug as defined in Section 111515 of the
Health and Safety Code may be prescribed for or administered to a
ward or conservatee under this division. Such an experimental drug
may be prescribed for or administered to a ward or conservatee only
as provided in Article 4 (commencing with Section 111515) of Chapter
6 of Part 5 of Division 104 of the Health and Safety Code.
(c) No convulsive treatment as defined in Section 5325 of the
Welfare and Institutions Code may be performed on a ward or
conservatee under this division. Convulsive treatment may be
performed on a ward or conservatee only as provided in Article 7
(commencing with Section 5325) of Chapter 2 of Part 1 of Division 5
of the Welfare and Institutions Code.
(d) No minor may be sterilized under this division.
(e) This chapter is subject to a valid and effective advance
health care directive under the Health Care Decisions Law (Division
4.7 (commencing with Section 4600)).

2356.5. (a) The Legislature hereby finds and declares:
(1) That people with dementia, as defined in the last published
edition of the "Diagnostic and Statistical Manual of Mental
Disorders," should have a conservatorship to serve their unique and
special needs.
(2) That, by adding powers to the probate conservatorship for
people with dementia, their unique and special needs can be met. This
will reduce costs to the conservatee and the family of the
conservatee, reduce costly administration by state and county
government, and safeguard the basic dignity and rights of the
conservatee.
(3) That it is the intent of the Legislature to recognize that the
administration of psychotropic medications has been, and can be,
abused by caregivers and, therefore, granting powers to a conservator
to authorize these medications for the treatment of dementia
requires the protections specified in this section.
(b) Notwithstanding any other provision of law, a conservator may
authorize the placement of a conservatee in a secured perimeter
residential care facility for the elderly operated pursuant to
Section 1569.698 of the Health and Safety Code, or a locked and
secured nursing facility which specializes in the care and treatment
of people with dementia pursuant to subdivision (c) of Section
1569.691 of the Health and Safety Code, and which has a care plan
that meets the requirements of Section 87724 of Title 22 of the
California Code of Regulations, upon a court's finding, by clear and
convincing evidence, of all of the following:
(1) The conservatee has dementia, as defined in the last published
edition of the "Diagnostic and Statistical Manual of Mental
Disorders."
(2) The conservatee lacks the capacity to give informed consent to
this placement and has at least one mental function deficit pursuant
to subdivision (a) of Section 811, and this deficit significantly
impairs the person's ability to understand and appreciate the
consequences of his or her actions pursuant to subdivision (b) of
Section 811.
(3) The conservatee needs or would benefit from a restricted and
secure environment, as demonstrated by evidence presented by the
physician or psychologist referred to in paragraph (3) of subdivision
(f).
(4) The court finds that the proposed placement in a locked
facility is the least restrictive placement appropriate to the needs
of the conservatee.
(c) Notwithstanding any other provision of law, a conservator of a
person may authorize the administration of medications appropriate
for the care and treatment of dementia, upon a court's finding, by
clear and convincing evidence, of all of the following:
(1) The conservatee has dementia, as defined in the last published
edition of the "Diagnostic and Statistical Manual of Mental
Disorders."
(2) The conservatee lacks the capacity to give informed consent to
the administration of medications appropriate to the care of
dementia, and has at least one mental function deficit pursuant to
subdivision (a) of Section 811, and this deficit or deficits
significantly impairs the person's ability to understand and
appreciate the consequences of his or her actions pursuant to
subdivision (b) of Section 811.
(3) The conservatee needs or would benefit from appropriate
medication as demonstrated by evidence presented by the physician or
psychologist referred to in paragraph (3) of subdivision (f).
(d) Pursuant to subdivision (b) of Section 2355, in the case of a
person who is an adherent of a religion whose tenets and practices
call for a reliance on prayer alone for healing, the treatment
required by the conservator under subdivision (c) shall be by an
accredited practitioner of that religion in lieu of the
administration of medications.
(e) A conservatee who is to be placed in a facility pursuant to
this section shall not be placed in a mental health rehabilitation
center as described in Section 5675 of the Welfare and Institutions
Code, or in an institution for mental disease as described in Section
5900 of the Welfare and Institutions Code.
(f) A petition for authority to act under this section shall be
governed by Section 2357, except:
(1) The conservatee shall be represented by an attorney pursuant
to Chapter 4 (commencing with Section 1470) of Part 1.
(2) The conservatee shall be produced at the hearing, unless
excused pursuant to Section 1893.
(3) The petition shall be supported by a declaration of a licensed
physician, or a licensed psychologist within the scope of his or her
licensure, regarding each of the findings required to be made under
this section for any power requested, except that the psychologist
has at least two years of experience in diagnosing dementia.
(4) The petition may be filed by any of the persons designated in
Section 1891.
(g) The court investigator shall annually investigate and report
to the court every two years pursuant to Sections 1850 and 1851 if
the conservator is authorized to act under this section. In addition
to the other matters provided in Section 1851, the conservatee shall
be specifically advised by the investigator that the conservatee has
the right to object to the conservator's powers granted under this
section, and the report shall also include whether powers granted
under this section are warranted. If the conservatee objects to the
conservator's powers granted under this section, or the investigator
determines that some change in the powers granted under this section
is warranted, the court shall provide a copy of the report to the
attorney of record for the conservatee. If no attorney has been
appointed for the conservatee, one shall be appointed pursuant to
Chapter 4 (commencing with Section 1470) of Part 1. The attorney
shall, within 30 days after receiving this report, do one of the
following:
(1) File a petition with the court regarding the status of the
conservatee.
(2) File a written report with the court stating that the attorney
has met with the conservatee and determined that the petition would
be inappropriate.
(h) A petition to terminate authority granted under this section
shall be governed by Section 2359.
(i) Nothing in this section shall be construed to affect a
conservatorship of the estate of a person who has dementia.
(j) Nothing in this section shall affect the laws that would
otherwise apply in emergency situations.
(k) Nothing in this section shall affect current law regarding the
power of a probate court to fix the residence of a conservatee or to
authorize medical treatment for any conservatee who has not been
determined to have dementia.
(l) (1) Until such time as the conservatorship becomes subject to
review pursuant to Section 1850, this section shall not apply to a
conservatorship established on or before the effective date of the
adoption of Judicial Council forms that reflect the procedures
authorized by this section, or January 1, 1998, whichever occurs
first.
(2) Upon the adoption of Judicial Council forms that reflect the
procedures authorized by this section or January 1, 1998, whichever
occurs first, this section shall apply to any conservatorships
established after that date.

2357. (a) As used in this section:
(1) "Guardian or conservator" includes a temporary guardian of the
person or a temporary conservator of the person.
(2) "Ward or conservatee" includes a person for whom a temporary
guardian of the person or temporary conservator of the person has
been appointed.
(b) If the ward or conservatee requires medical treatment for an
existing or continuing medical condition which is not authorized to
be performed upon the ward or conservatee under Section 2252, 2353,
2354, or 2355, and the ward or conservatee is unable to give an
informed consent to this medical treatment, the guardian or
conservator may petition the court under this section for an order
authorizing the medical treatment and authorizing the guardian or
conservator to consent on behalf of the ward or conservatee to the
medical treatment.
(c) The petition shall state, or set forth by medical affidavit
attached thereto, all of the following so far as is known to the
petitioner at the time the petition is filed:
(1) The nature of the medical condition of the ward or conservatee
which requires treatment.
(2) The recommended course of medical treatment which is
considered to be medically appropriate.
(3) The threat to the health of the ward or conservatee if
authorization to consent to the recommended course of treatment is
delayed or denied by the court.
(4) The predictable or probable outcome of the recommended course
of treatment.
(5) The medically available alternatives, if any, to the course of
treatment recommended.
(6) The efforts made to obtain an informed consent from the ward
or conservatee.
(7) The name and addresses, so far as they are known to the
petitioner, of the persons specified in subdivision (c) of Section
1510 in a guardianship proceeding or subdivision (b) of Section 1821
in a conservatorship proceeding.
(d) Upon the filing of the petition, unless an attorney is already
appointed the court shall appoint the public defender or private
counsel under Section 1471, to consult with and represent the ward or
conservatee at the hearing on the petition and, if that appointment
is made, Section 1472 applies.
(e) Notice of the petition shall be given as follows:
(1) Not less than 15 days before the hearing, notice of the time
and place of the hearing, and a copy of the petition shall be
personally served on the ward, if 12 years of age or older, or the
conservatee, and on the attorney for the ward or conservatee.
(2) Not less than 15 days before the hearing, notice of the time
and place of the hearing, and a copy of the petition shall be mailed
to the following persons:
(A) The spouse or domestic partner, if any, of the proposed
conservatee at the address stated in the petition.
(B) The relatives named in the petition at their addresses stated
in the petition.
(f) For good cause, the court may shorten or waive notice of the
hearing as provided by this section. In determining the period of
notice to be required, the court shall take into account both of the
following:
(1) The existing medical facts and circumstances set forth in the
petition or in a medical affidavit attached to the petition or in a
medical affidavit presented to the court.
(2) The desirability, where the condition of the ward or
conservatee permits, of giving adequate notice to all interested
persons.
(g) Notwithstanding subdivisions (e) and (f), the matter may be
submitted for the determination of the court upon proper and
sufficient medical affidavits or declarations if the attorney for the
petitioner and the attorney for the ward or conservatee so stipulate
and further stipulate that there remains no issue of fact to be
determined.
(h) The court may make an order authorizing the recommended course
of medical treatment of the ward or conservatee and authorizing the
guardian or conservator to consent on behalf of the ward or
conservatee to the recommended course of medical treatment for the
ward or conservatee if the court determines from the evidence all of
the following:
(1) The existing or continuing medical condition of the ward or
conservatee requires the recommended course of medical treatment.
(2) If untreated, there is a probability that the condition will
become life-endangering or result in a serious threat to the physical
or mental health of the ward or conservatee.
(3) The ward or conservatee is unable to give an informed consent
to the recommended course of treatment.
(i) Upon petition of the ward or conservatee or other interested
person, the court may order that the guardian or conservator obtain
or consent to, or obtain and consent to, specified medical treatment
to be performed upon the ward or conservatee. Notice of the hearing
on the petition under this subdivision shall be given for the period
and in the manner provided in Chapter 3 (commencing with Section
1460) of Part 1.

2358. When a guardian or conservator is appointed, the court may,
with the consent of the guardian or conservator, insert in the order
of appointment conditions not otherwise obligatory providing for the
care, treatment, education, and welfare of the ward or conservatee.
Any such conditions shall be included in the letters. The performance
of such conditions is a part of the duties of the guardian or
conservator for the faithful performance of which the guardian or
conservator and the sureties on the bond are responsible.

2359. (a) Upon petition of the guardian or conservator or ward or
conservatee or other interested person, the court may authorize and
instruct the guardian or conservator or approve and confirm the acts
of the guardian or conservator.
(b) Notice of the hearing on the petition shall be given for the
period and in the manner provided in Chapter 3 (commencing with
Section 1460) of Part 1.
(c) (1) When a guardian or conservator petitions for the approval
of a purchase, lease, or rental of real or personal property from the
estate of a ward or conservatee, the guardian or conservator shall
provide a statement disclosing the family or affiliate relationship
between the guardian and conservator and the purchaser, lessee, or
renter of the property, and the family or affiliate relationship
between the guardian or conservator and any agent hired by the
guardian or conservator.
(2) For the purposes of this subdivision, "family" means a person'
s spouse, domestic partner, or relatives within the second degree of
lineal or collateral consanguinity of a person or a person's spouse.
For the purposes of this subdivision, "affiliate" means an entity
that is under the direct control, indirect control, or common control
of the guardian or conservator.
(3) A violation of this section shall result in the rescission of
the purchase, lease, or rental of the property. Any losses incurred
by the estate of the ward or conservatee because the property was
sold or leased at less than fair market value shall be deemed as
charges against the guardian or conservator under the provisions of
Sections 2401.3 and 2401.5. The court shall assess a civil penalty
equal to three times the charges against the guardian, conservator,
or other person in violation of this section, and may assess punitive
damages as it deems proper. If the estate does not incur losses as a
result of the violation, the court shall order the guardian,
conservator, or other person in violation of this section to pay a
fine of up to five thousand dollars ($5,000) for each violation. The
fines and penalties provided in this section are in addition to any
other rights and remedies provided by law.

2360. Upon the establishment of a conservatorship by the court and
annually thereafter, the conservator shall ensure that a clear
photograph of the conservatee is taken and preserved for the purpose
of identifying the conservatee if he or she becomes missing.